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ELCDismissedMeru High Court (appellate side) - Notice of Motion dated 9/9/2015, arising from appeal against Maua C.M.C.C No. 43 of 2011· [2015] KEELC 833 (KLR)

M’Mucheke M’Mubwika & 3 othes v Janet Kaunanku Kithis & another [2015] KEELC 833 (KLR)

High Court of Kenya
8 October 2015
PNP. M. Njoroge
594 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a ruling of the High Court at Meru (P. M. Njoroge, J) on a Notice of Motion dated 9/9/2015 brought by M'Mucheke M'Mubwika and Julius Kari Mucheke, applicants in an appeal against the judgment and decree in Maua C.M.C.C No. 43 of 2011. The application, premised on Sections 3 and 3A of Cap. 21, Order 22 Rules 50, 51 and 53 CPR and Article 159 of the Constitution, sought stay of execution of the decree pending the appeal, retention of Kshs. 574,000/= of the 1st defendant's Kshs. 937,300/= deposited in court as security, and release of the balance of Kshs. 363,300/= to the applicants. On 16/9/2015 the court granted conditional stay requiring the applicants to deposit Kshs. 300,000/= as security within 14 days and to file and exchange written submissions on two pending applications. On the confirmation date of 7/10/2015, the respondent's advocate, Mr. Harun Gitonga, pointed out that the applicants had neither deposited the security nor served their submissions; the applicants and their advocate were absent. The court found that the applicants had not observed the terms of the conditional stay, which lapsed automatically, and that they had failed to prosecute their application. The application dated 9/9/2015 was dismissed with costs to the respondents.

Key legal issues

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01

Compliance with conditional stay orders

Holding

The conditional stay granted on 16/9/2015 lapsed automatically because the applicants did not deposit the stipulated Kshs. 300,000/= as security within 14 days, and the applicants also failed to prosecute their application, warranting dismissal.

Reasoning

The court had granted conditional stay on 16/9/2015 requiring the applicants to deposit Kshs. 300,000/= as security within 14 days and to file and exchange written submissions. On the confirmation date of 7/10/2015, the respondent's counsel confirmed that no security had been deposited and no submissions served. The applicants and their advocate were absent despite notice. The court found non-compliance with the condition and failure to prosecute, and dismissed the application with costs.

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Legal principles established

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  • A party granted conditional relief must strictly comply with the conditions imposed, failing which the relief lapses automatically and the application will be dismissed for non-compliance and want of prosecution.

Court orders

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  1. 1.The application dated 9/9/2015 is dismissed
  2. 2.Costs awarded to the respondents

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 3 and 3A
  • Civil Procedure RulesOrder 22 Rules 50, 51 and 53
  • Constitution of KenyaArticle 159
On appeal from
Maua Chief Magistrate's Court
Maua C.M.C.C No. 43 of 2011
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act (Cap. 21), Order 22 Rules 50, 51 and 53 of the Civil Procedure Rules, and Article 159 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "M’Mucheke M’Mubwika & 3 othes v Janet Kaunanku Kithis & another [2015] KEELC 833 (KLR)", Case Analysis (2015). Meru High Court (appellate side) - Notice of Motion dated 9/9/2015, arising from appeal against Maua C.M.C.C No. 43 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/833/eng@2015-10-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.